Hadcock V. O'Rowke

The claim of the plaintiff is that the rights of the parties with respect to the subject-matter of this action were determined by the adjudications had in the two previous actions. He contents himself, therefore, by proving the reports of the referee, and judgment-rolls in the actions, and claims to recover, on account thereof, the value of the mules and harness, as found by the referee after deducting the .sum found due defendant in the accounting action, with which sum he was credited in the replevin action. An examination of the record discloses the fact that all of the matters in dispute were litigated in the two actions noted, and from the issues framed therein, it appears that the referee was called upon to pass on all the questions to which his report refers, and which embraces the subject-matter in controversy here. In the first action he took and stated the accounts between the parties, and reached a fixed, determinate result.

In the second action he was required to determine the amount due from O’Rowrke to Hadcock by virtue of the property seized, in order to fix the amount Hadcock should pay, or that O’Rowrke should be charged with ; this necessitated an inquiry into the value of the property taken. In so doing, the mules and harness were considered, their value fixed, the $126.38 deducted. Then, and not until then, was the referee able to determine in whom the title to the canal boats rested, and otherwise make up his judgment. The subject-matter of this action was, therefore, involved and passed upon in the replevin action. The referee could not *897render judgment for the return of the mules or their value, for the reason that they were not embraced within the property replevined, but were seized without process, and could only be considered in determining the rights of the parties with respect to the property replevined.

The rule with regard to the estoppel of a former adjudication is well settled. As stated by Judge Andrews, it “extends to any material matter within the issues, which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered.” Pray v. Hegeman, 98 N. Y., 351; Griffin v. Long Island R. R. Co., 102 N. Y, 449, 452 ; 2 N. Y. State Rep., 454; Van Gelder v. Hollenbeck, 12 N. Y. State Rep., 185.

This rule is conceded by defendant, but his contention is that the subject-matter of this action was not embraced within the issues raised by the former actions; that the only effect of the adjudication in the first action was, to determine whether anything was due from the plaintiff to the defendant, and that there having been found a sum due defendant, the purpose of the action was accomplished, and the only judgment which could be rendered, was to dismiss the complaint, and that such is the only effect of the judgment rendered therein. That as to the replevin action, the mules were not embraced in the property replevined, and consequently the referee could determine no •question involving other property. The discussion already had disposes of the latter proposition adversely to defendant. As to the other, defendant relies upon Campbell v. Consalus (25 N. Y., 613). An examination of that case shows a radical distinction between it and the one at bar.

That was an action to foreclose a mortgage. Prior to such action being brought, the defendant therein had brought an action against the assignor of the mortgage, alleging in his complaint that the mortgage had been fully paid, that a request to satisfy the mortgage had been refused, and for relief asked that the mortgage be cancelled and satisfied of record. Yo accounting was asked for, nor was there any offer to pay any sum which might be found due thereon. The issue raised by the answer was, whether the mortgage had been paid; there was no demand for affirmative relief. A trial was had, and a sum found due upon the mortgage, judgment was thereupon entered dismissing the complaint. In disposing of the question the court held that under the issue framed, the only question was, whether there was •anything due upon tho mortgage, and when that was deter*898mined in favor of the defendant, the object of the action was accomplished; that while an accounting might have been had, and was probably necessary, as determining the issue, yet the sum due was simply incidental and collateral, and as to those matters could not work an estoppel. It is perfectly clear, however, that if the parties had demanded affirmative relief by an offer te pay the sum found due or a demand for judgment, establishing the amount due, the rule would have been different. In the case under consideration, the plaintiff in terms offered to pay any amount found due, and owing by him, to defendant. The defendant asked affirmative relief, that if an accounting was ordered (which was done), then, that he should have judgment for the amount with interest. The decision in the Campbell case, was the result of a lack of issue. The decision here must be the reverse, by the presence of it. No case has been called to the court’s attention which enlarges the doctrine contained in Campbell v. Consalus. If we assume that the judgment entered in the acconnting action is simply a judgment of dismissal, I do not think that defendant is aided. The issue raised by the pleadings, and the report of the referee, clearly authorized the entry of a judgment in favor of defendant, fqr the amount found due. The parties have had a trial (so far as the record shows), fair in every respect, in which all the matters here have been litigated and determined. It is for the benefit of parties, that litigation should sometimes find an end; with two adjudications upon the same question, between these parties, before me, 1 find that a due consideration for common justice requires a holding, that the findings heretofore liad are res adjudicata, both as to the title of the property involved and its value.